State v. Diggins

THE STATE OF ARIZONA, Appellee, v. ERIC SCOTT DIGGINS, Appellant.

No. 2 CA-CR 2012-0212

ARIZONA COURT OF APPEALS DIVISION TWO

Filed: April 22, 2014

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND

MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20110290001

The Honorable Clark W. Munger, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Kathryn A. Damstra, Assistant Attorney General, Tucson

Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender

By Erin K. Sutherland, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.

HOWARD, Chief Judge:

¶1 After a jury trial, appellant Eric Diggins was convicted of sale of a narcotic drug and sentenced to twenty-eight years' imprisonment. On appeal, he contends his sentence was illegal because the state failed to provide pretrial notice of its intent to allege aggravating factors. He additionally argues the trial court abused its discretion by imposing the maximum sentence. Because we find no error, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the verdict. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In January 2011, Diggins sold 2.5 grams of heroin to an undercover police officer. Diggins was charged with and convicted of sale of a narcotic drug. The trial court found the state had proven the existence of two historical prior felonies as well as a third prior felony conviction, which the court found to be an aggravating circumstance pursuant to A.R.S. § 13-701(D)(11). On that basis, the court sentenced Diggins to an enhanced, maximum prison term of twenty-eight years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

Pretrial Notice

¶3 Diggins argues that "because the state gave no formal notice of aggravating factors prior to trial," the imposition of the maximum sentence was illegal. We review challenges to the legalityof a sentence de novo. State v. Johnson, 210 Ariz. 438, ¶ 8, 111 P.3d 1038, 1040 (App. 2005).¹

¶4 Diggins concedes that Arizona courts have concluded that aggravating factors need not be included in the indictment in either non-capital or capital cases. McKaney v. Foreman, 209 Ariz. 268, ¶ 23, 100 P.3d 18, 23 (2004); see also State v. Aleman, 210 Ariz. 232, n.7, 109 P.3d 571, 578 n.7 (App. 2005). Diggins also points out that the court in State v. Scott, concluded that the state does not have to give any pretrial notice of aggravating factors, even in capital cases. 177 Ariz. 131, 141-42, 865 P.2d 792, 802-03 (1993). Diggins contends, however, that the United States Supreme Court's decision in Ring v. Arizona, 536 U.S. 584 (2002), changes the result of Scott and requires the state to provide pretrial notice of the aggravating factors upon which it intends to rely.

¶5 In Ring, the United States Supreme Court held that a capital defendant's Sixth Amendment right precludes a sentencing judge, sitting without a jury, from finding an aggravating factor necessary for imposition of the death penalty. 536 U.S. at 609. First, Ring was a capital case and does not apply in the non-capital context. See State v. Estrada, 210 Ariz. 111, ¶¶ 18-19, 108 P.3d 261, 266 (App. 2005) (Ring requirements are "inapplicable in the context of noncapital sentencing"). Second, Ring does not address a noncapital defendant's right to pretrial notice of aggravating factors, and Diggins provides no explanation or analysis that would compel such a conclusion. Accordingly, Ring has not changed this court's conclusion that, in non-capital cases, pre-trial notice of aggravating factors is not required, Scott, 177 Ariz. at 141-42, 865 P.2d at 802-03, and even notice of aggravating factors in the state's sentencing memorandum is sufficient, State v. Jenkins, 193 Ariz. 115, ¶ 21, 970 P.2d 947, 953 (App. 1998); see also State v. Marquez, 127 Ariz. 3, 6, 617P.2d 787, 790 (App. 1980) (aggravating circumstances in presentence report provide sufficient notice). We reject Diggins's argument that Ring has imposed any notice requirement of aggravating factors in non-capital cases.

¶6 Diggins also argues that Rule 13.5(a), Ariz. R. Crim. P., requires the state to give notice of all sentencing allegations, including aggravating factors, within the time limits prescribed by Rule 16.1(b). We interpret criminal procedure rules de novo, see State v. Roque, 213 Ariz. 193, ¶ 21, 141 P.3d 368, 380 (2006), using principles of statutory construction, State v. Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d 166, 168 (2007). We look first to the plain language of a rule because that is "the best and most reliable index of [the rule's] meaning." Hansen, 215 Ariz. 287, ¶ 7, 160 P.3d at 168, quoting Deer Valley Unified Sch. Dist. No. 97 v. Houser, 214 Ariz. 293, ¶ 8, 152 P.3d 490, 493 (2007).

¶7 Rule 13.5(a) permits the state to "amend an indictment . . . to add an allegation of one or more prior convictions or other non-capital sentencing allegations that must be found by a jury within the time limits of Rule 16.1(b)[, Ariz. R. Crim. P.]" A prosecutor thus has discretion to add those allegations to the indictment up to twenty days before trial. State v. Cons, 208 Ariz. 409, ¶ 4, 94 P.3d 609, 611 (App. 2004). Diggins asserts that the plain language of these rules "mandates that the State provide notice of aggravating factors no less than twenty days prior to trial." We disagree. Rule 13.5(a) merely provides the prosecutor an opportunity to amend the indictment to include sentencing allegations as other law might require. And, as Diggins has conceded, aggravating factors do not have to be included in the indictment. See Aleman, 210 Ariz. 232, n.7, 109 P.3d at 578 n.7. Diggins also has not challenged our cases concluding that, in noncapital cases, notice of aggravating factors before sentencing but after trial is sufficient. See Jenkins, 193 Ariz. 115, ¶ 21, 970 P.2d at 953; Marquez, 127 Ariz. at 6, 617 P.2d at 790. Because Diggins has not provided any legal authority for his position that Rule 13.5(a) imposes a requirement on the state to allege aggravating factors prior to trial, his reliance on this rule consequently fails.

¶8 Diggins also argues that because Chronis v. Steinle, 220 Ariz. 559, 208 P.3d 210 (2009), a capital case, permits pretrial challenge to the "aggravating circumstances" under Rule 13.5(c), Ariz. R. Crim. P., and the language of Rule 13.5(d) is nearly identical, "it is clear that pretrial allegation of intent to use such factors in aggravation is required." In capital cases, the state must file a notice of aggravating circumstances when it files its notice that it intends to seek the death penalty. Ariz. R. Crim. P. 15.1(i)(2). Rule 13.5(c) allows a defendant in a capital case to "challenge the legal sufficiency of an alleged aggravating circumstance by motion." Both Chronis and Rule 13.5(c) specifically apply to sentencing in capital cases, which are subject to a distinct statutory scheme, and are therefore inapplicable here. See A.R.S. §§ 13-751 through 13-759. indeed, Rule 13.5(d) specifically addresses non-capital cases, and permits a defendant to "challenge the legal sufficiency of an alleged prior conviction or non-capital sentencing allegation that must be found by a jury by motion."

¶9 As Diggins has conceded, notice of aggravating factors is not required in the indictment and therefore subsection (d) cannot independently impose such a requirement. And, even if Rule 13.5(d) is intended to allow pretrial challenge to alleged aggravating factors in non-capital cases, the rule itself merely permits such challenges by motion. Nothing in the language of the rule requires the state to formally allege those factors.

¶10 Diggins, however, contends "the pretrial notice of intent to prove such aggravating factors must still comport with due process requirements." But Diggins largely relies on cases involving notice requirements for sentence enhancement and aggravating factors in capital cases. See State v. Nichols, 201 Ariz. 234, ¶ 15, 33 P.3d 1172, 1176 (App. 2001) (allegation of serious drug offense); McKaney, 209 Ariz. 268, ¶ 16, 100 P.3d at 21-22 (allegation of aggravating factors supporting death penalty). Those cases are inapplicable here. And State ex rel. Smith v. Conn, 209 Ariz. 195, ¶ 14, 98 P.3d 881, 885 (App. 2004), on which Diggins also relies, concludes that the state may add an allegation of aggravating factors to an indictment prior to trial, not that it must. Although Diggins is correct that any allegation of prior convictions must comport withdue process, he has not established that due process requires notice within a specific time period or with a particular element of formality.

¶11 Moreover, on the record before us, Diggins received sufficient notice of the state's intent to use his prior conviction as an aggravating factor. First, the state filed an allegation of prior convictions for enhancement purposes along with Diggins's indictment more than a year before trial. Second, his indictment refers to A.R.S. § 13-701, which lists prior convictions as an aggravating factor. This reference, along with the attached allegation of prior conviction, was sufficient to put Diggins on notice that his prior convictions could both enhance and aggravate his sentence. And, most importantly, before the jury was impaneled and sworn on the first day of the first trial, the state made it clear that it intended to use the prior conviction as an aggravating factor. That trial ended in a mistrial, and Diggins was retried forty-seven days later. Diggins thus had notice before trial that the state intended to use his prior conviction...